Teaching Brexit … again

By Paul James Cardwell – Posted on 6 October 2020

The academic year 2020-2021 will be remembered for all sorts of reasons. Learning and teaching online in the middle of a pandemic brings all kinds of changes – hopefully ones that will only be temporary. For those of us involved in teaching about the EU and EU law in UK law schools, 2020 continues to present some basic challenges about what we teach and how. I wrote on this topic in 2017. Three years on, it seems that not a great deal has changed. 

The academic year 2020-21 is the first since 1972 that EU law will be taught in the UK as a non-Member State. Yet, as the UK remains in the transition period until the end of the calendar year 2020, uncertainty abounds about what happens after 31 December. Since the EU referendum result in 2016, staff across UK law schools have grappled with questions about what place EU law should have in the curricula in the future and the extent to which Brexit should be covered at all. 

Since the departure of the UK from the EU does not in itself change the foundations of working of EU law insofar as it applies across the rest of the EU, much can continue as before. But since we are teaching EU law as part of a degree in Scots, English & Welsh or Northern Irish law, the extent to which EU law might continue to apply across the UK, or not, cannot be ignored. 

This brings up two related problems. Firstly, since the referendum there has been a question mark hanging over the future UK-EU relationship, even when membership of the Single Market and Customs Union (and the large body of law that goes with it) was ruled out early on by Theresa May. Any potential role for the Court of Justice in the bilateral relationship has similarly been regarded as a ‘red line’ that cannot be crossed. 

There is accordingly a huge amount of uncertainty in terms of what the extent of EU Law will be. The Scottish Government’s stated purpose to remain as closely aligned to EU law as possible gives some clarity, but this would only apply in devolved areas. In the absence therefore of any real (legal) substance to the future of the UK-EU relationship, attempting to cover in detail would – for the time being – appear to be very difficult. However, coverage of the options available is appropriate, not least to ensure that students are able to make sense of the rapid changes that have been occurring since the referendum result. 

The second problem that arises therefore is how to teach Brexit as both an event and a process. Many of the sources that students and staff are familiar with using in the teaching setting – books and journal articles – have not yet been written. Some excellent works by legal scholars have appeared, including Armstrong’s ‘Brexit Time’ and Fahey and Ahmed, ‘On Brexit’, but much of the analysis considers what the future might look like based on the process so far. Craig and de Búrca’s ‘EU Law’ (7th edition) now has a ‘UK edition’ and covers how the different spheres of EU law might continue to apply in the UK. But even journal articles on Brexit published online, having gone through rigorous drafting and peer-review, are subject to going out-of-date almost as soon as they are published unless they take a speculative approach on the future, as I did here

A further challenge – exacerbated during the shift to remote teaching – is that online research differs from library-based research. If a journal is stocked by a University library, then that acts as a kind of quality ‘filter’. But there is no guarantee that something that might look like a reputable journal published online meets the same standards. On Brexit, for the reasons mentioned above, a search via an online library portal might yield some results, but not the latest developments. 

One way to try to bridge the gap of teaching a topic where developments can change day-by-day is to use it as a case-study of strengthening research skills. When reading around a subject, especially one which is changing rapidly, we need to ask ourselves how can we best understand the sources we use? In an age where much of the information we find is online, how do we ensure that sources we find are reliable? How do we account for and take into account particular viewpoints and why these are being adopted? 

In our EU Law (Honours) (4th year) class, we have trialled an approach whereby students select an online source on Brexit. It can be on any aspect of Brexit, but it must be something which looks like it might have useful information that could be relied upon in, for example, a piece of assessed work. We then discuss the merits of using such pieces and whether they are the most suitable as evidence. 

This approach has helped to strengthen (legal) research skills by asking questions that generally do not apply when using academic writing. For example, is a newspaper piece seeking to inform the readership, or is it a comment piece that pushes a certain agenda? If so, do we need to make clear that it is an opinion, and are other views available? 

Similarly, reports from thinktanks, campaign groups and industry bodies are highly detailed and can be produced quite rapidly, but are we treating these as neutral sources or ones which have a particular ethos or agenda to promote? Just because something is listed high up in the results of an internet search, does that necessarily make it reliable? 

In practical terms, evaluating sources uses a ‘back to basics’ approach. Questions to ask include: who is the author of a document? Can you find out anything about them? Is it an official or government source? If it is a private body such as a thinktank, can you find anything about them or what do they say about themselves, their funding or their relationship to other bodies? 

Posing all these questions reveals that seeking information about Brexit, as an example topic, has never been easier in an age of online research. But at the same time, ensuring that information is reliable and treated properly can be difficult: a flashy and well-presented report published online and which is at the top of a Google search on a topic might look reliable, but going beyond face value is vitally important. An exercise therefore in questioning what we take for granted is both an essential research skill – and a reminder to members of the academic community that we need to constantly revisit what we assume students will regard as ‘proper’ sources.